Appeal No. EAT/0317/03/SM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 30 June 2003

Before
THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)
(SITTING ALONE)

MR J F BRENNAN	APPELLANT

BEDFORD BOROUGH COUNCIL	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	NO APPEARANCE OR
REPRESENTATION
BY OR ON BEHALF OF
THE APPELLANT	
For the Respondent	MR G STOKER
(of Counsel)
Instructed By:
Bedford Borough Council
Legal Services
Town Hall
St Pauls Square
Bedford MK40 1SJ

MR JUSTICE BURTON (PRESIDENT):

1	This has been listed as the hearing of an appeal by Mr Brennan, against the dismissal by the Chairman sitting alone at Bedford, of his application for disclosure of documents, against the Respondent, the Bedford Borough Council.  The Appellant has not attended, but he has put in detailed submissions, which I have read and considered, and his absence has not prejudiced him.

2	There are outstanding claims by Mr Brennan against the Bedford Borough Council for unfair dismissal, wrongful dismissal, victimisation and relating to protected disclosure.  An earlier claim in respect of discrimination has already been dismissed and the Applicant sought disclosure of the documents, or categories of documents in question, on the basis that they were relevant and necessary for the pursuit of his surviving claim.

3	According to the Decision of the Chairman, in paragraph 1 of his Extended Reasons, there were 100 documents, or categories of documents, originally sought.  Of those 100 the Respondents have disclosed to the Applicant a total of 41 documents, or categories of documents, and the answer was given, which the Applicant did not challenge, that a further 30 documents, or categories of documents, were not available.  That left a balance of 29 documents, or categories of documents, which the Respondent Council before the Employment Tribunal said that they were unable to disclose because of the provisions of Section 49 of the Audit Commission Act 1998.  That Act which, of course, is dedicated towards facilitating investigation into, among other things, local authority affairs by an Audit Commission or a District Auditor, provides by Section 49(1), as follows, in material part:

“No information relating to a particular body or other person and obtained by the Commission or an auditor, or by a person acting on behalf of the Commission or an auditor, pursuant to any provision of this Act or in the course of any audit or study under any such provision shall be disclosed except -
(a)	with the consent of the body or person to whom the information relates; .....
(f)	for the purposes of any criminal proceedings.”

I have left out the other subparagraphs which can have no conceivable relevance to the present position.

4	The Respondent authority was then, and now, concerned not to breach the provisions of that Act or, indeed, to act without any relevant consent prescribed by that Act.  These proceedings are not, of course, criminal proceedings but I have read Section 49(1)(f) because, of course, it was pointed out to the Tribunal below that there was an express permission for any documents, whose disclosure was otherwise restricted by Section 49 for the purposes of criminal proceedings, and hence by clear consequence there was no automatic sanction for their use for civil proceedings, even if they were otherwise disclosable in such proceedings.

5	The Respondent authority, therefore, pointed to the only other potential get out under Section 49, namely “with the consent of the body or person” to whom the information related, and indicated that it was willing to seek such consent, but that it contended that without such consent, Section 49 precluded the authority from making disclosure or producing documents to the Tribunal.  

6	The Tribunal recorded that the Respondents did not take any point as to relevance and the only argument before the Tribunal in those circumstances related to Section 49 of the Act.  The Decision which was short, read in material part, as follows:

“3.	I have heard argument today on the provisions of section 49.  They are clearly draconian provisions from the viewpoint of Mr Brennan.  However, I have been referred to the High Court decision in Bookbinder v Tebbit [1992] 1 WLR 217.  Although this decision relates to section 30(1) Local Government Finance Act 1982, the wording of section 30(1) is identical to that at section 49 of the Audit Commission Act.  I find that this decision is substantially on all fours with the position in Mr Brennan’s case.  All that is different is that since the Bookbinder decision in 1992, we have had the passing of the Human Rights Act 1998.”

7	I interpose to say that the Bookbinder decision was a decision of Drake J at first instance and to that extent would be persuasive, but not binding upon this Appeal Tribunal, although binding on the Employment Tribunal, and, as has been pointed out by the Chairman, it antedated the Human Rights Act, consideration of which has specifically been put before the Employment Tribunal and this Appeal Tribunal by Mr Brennan.  

8	The Employment Tribunal continued:

“4	The Human Rights Act requires me to interpret domestic law, so far as I can, consistently with the provisions of that Act.  However, section 49 of the Audit Commission Act (enacted in the same year) is very clearly drafted.  There are two significant exceptions and those relate to, first, the consent of the body or person to whom the information relates, and, secondly, for the purposes of any criminal proceedings.  It is quite clear that civil proceedings do not fall within the exception, despite the specific exception for criminal proceedings.  I am not aware of any other provision within the confines of the Audit Commission Act which would assist Mr Brennan.  Section 49 is so specific that I can find no way to interpret it in a manner which would satisfy Mr Brennan’s application today.  It may be that there is an argument about incompatibility but that is not an argument for me, it is an argument for the High Court.
5	I, like the Respondents, must base my decision on the domestic law that is before me.  I find that section 49 does indeed preclude the Respondents from giving disclosure to the Applicant of the documents in question, and for the same reason I too am precluded from making any order for their production.”

9	In his Notice of Appeal, which has been accompanied by a very lengthy and detailed written submission, Mr Brennan has attacked that conclusion by the Employment Tribunal.  He has criticised the Employment Tribunal for failing to act in accordance with a decision called ALM Medical Services Limited v Bladon (Unreported CA 26 July 2002), which was a case which emphasised the public interest in the disclosure of documents.  That appears to me not to take matters any further, because the Tribunal accepted that there was a relevance in the documents in question, but considered that disclosure was precluded by Section 49.

10	It may be that Mr Brennan has concentrated on ALM, by virtue of the way in which the Bookbinder case was dealt with by Drake J.  There were two sources of argument in the Bookbinder case, the first of which related to public interest and, in particular, Public Interest Immunity, and the second related to the construction of the statutory provision, which Drake J found foreclosed disclosure and which, for understandable reasons, this Chairman concluded was materially identical.  

11	The public interest arguments, to which ALM would have been relevant, were not only not decisive in Bookbinder, but were not that part of the decision in Bookbinder to which the Employment Tribunal looked, and, whether or not matters of public interest arise, the issue is one solely of construction of Section 49.  But the balance of the Applicant’s Notice of Appeal related to a case that the Employment Tribunal misinterpreted Section 49, failed to comply with Section 3 of the Human Rights Act, and acted in a way that was incompatible with his Convention Rights under Articles 6.1 and 10.1 of the European Convention on Human Rights and, thereby acted contrary to Section 6.1 of the Human Rights Act 1998.  

12	Insofar as the Applicant makes complaint of a failure by the Employment Tribunal to take account of Articles 6 and 10, with a view to the fairness of the hearing to come, by way of giving him as much disclosure as is appropriate, that appears to us to be misconceived.  Of course it is right that the Employment Tribunal, as indeed this Appeal Tribunal, must comply with Article 6.  But, quite apart from Article 6, this Tribunal would have ordered disclosure being content that the documents were not contended not to be relevant or necessary for disclosure, but for the provisions of Section 49;  and, if Section 49, in fact, forecloses such disclosure, then the only remedy would be to declare Section 49 incompatible with the Human Rights Act because it affects or prejudices the Applicant’s Human Rights under Article 6 or Article 10; and, as the Chairman pointed out, the Employment Tribunal, and, indeed, this Appeal Tribunal, has no power to declare a statute incompatible;  that is alone the province of the High Court and, indeed, the Court of Appeal.

13	But, quite apart from any question of declaring Section 49 incompatible the Applicant, rightly in my judgment, points out the importance of Section 3 of the Human Rights Act 1998, which requires the Employment Tribunal and this Appeal Tribunal to interpret statute in accordance with the Human Rights Act, and so as to comply with the Human Rights Act.  In his helpful submissions Mr Brennan has reminded this Appeal Tribunal of its powers and, indeed, duties in that regard and has referred to dicta, among others, of Lord Steyn in that regard.  

14	It is in that context that I turn to consider the construction of Section 49.  It is plain that the purpose of Section 49 is, as I said earlier, to encourage frankness and openness, as between those who are providing information to the Auditor, and the Auditor or the Audit Commission, not to discourage the provision of information.  

15	I am satisfied that Section 49 is not required, either at common law or particularly with the assistance of the duties on this Tribunal, which are imposed by Section 3 of the Human Rights Act, to be construed in the draconian way, in which the Employment Tribunal Chairman in this case construed it.  “No information obtained by the Commission or an auditor shall be disclosed”, it seems plain, relates clearly to the following:

(1)	Documents created by the Auditor from such information, ie transcripts or notes of, or statements made or drawn up by the Auditor or his staff from, information supplied by, or meetings held with, informants or, of course, memoranda or documents prepared by the Auditor or his staff resulting from such information, or meetings or communications.

(2)	Documents created by others (informants or otherwise) for the purpose of submission to the Auditor or the Commission.  Thus, if, for example, a would-be informant prepares a statement, creates a memo, sends a letter or e-mail, or causes or permits the lawyer to do so on his behalf, then that document, it appears to me plainly, would fall within the provisions of Section 49.  

It may be that original or copy documents which are supplied to the Commission or Auditor not falling within either such category, but thus obtained by the Auditor or Commission, are not to be disclosed by the Auditor while in the Auditor’s possession, custody or power.  I make no judgment in that regard in this case.

16	However, it seems to me plain that, in order to construe Section 49 compatibly with the Human Rights Act and, in particular, with the rights of a litigant in civil proceedings under Article 6, such preclusion does not extend to the following documents, namely documents whose disclosure is not otherwise precluded by some privilege, but which happen to have been supplied to the Auditor, but originals or copies of which remain in the possession, custody or power of the person who supplied them to the Auditor, from which person disclosure or production is then properly sought.  

17	First, it seems plain to me that the fact that such documents happen to have been supplied to the Auditor cannot cloak those documents with a privilege from production, cannot create a preclusion from production, simply by the happenstance of their having been provided to the Auditor.  If they were disclosable in the hands of the person who supplied them to the Auditor before he or she so supplied them, then they remain, in my judgment, subject to disclosure, and the simple fact that they may have been, or copies of them may have been, supplied to the Auditor during an investigation cannot render them precluded from disclosure, if otherwise disclosable.  That seems to me to be a sensible and permissible and, indeed, required reading of Section 49.  It would amount to a close analogy with the law of legal advice privilege, as recently clarified in Three Rivers District Council & Ors v The Governor & Company of The Bank of England [2003] EWCA Civ 474, in which it was reiterated that legal advice privilege does not attach to documents, not otherwise privileged, which had been laid before a solicitor for advice, but only extends to documents which have been created for the purpose of seeking advice or communications between the lawyer and the client, or documents created by the lawyer as a result of such communications.

18	Secondly, any other construction of Section 49 would lead to an extreme result which would, in my judgment, be completely unjustifiable.  If Section 49 is to be taken to mean what the Chairman here found, then there can never be any time limit upon disclosure.  Section 49 does not say that such documents cannot be disclosed while the Commission or the Auditor continues to investigate;  and, in any event, such investigation may go on for many years.  Would it mean that the documents, once supplied to the Auditor, which are otherwise disclosable, never revert to being disclosable and thus remain precluded for ever?  

19	The Applicant himself, in the course of submissions, has pointed out that there might have been, in this case, a factual dispute which the Tribunal did not resolve.  Is it enough for the Respondent in this case, or a similar Respondent in another case, to assert that the documents have been supplied to the Commission, or would there not have to be some kind of trial within a trial to investigate whether that is so?  Would it be sufficient that they had been supplied simply for a short time to the Commission, for example, to look at in the course of an interview, but then not copied and returned after 24 hours?  

20	In all those circumstances, I am entirely satisfied that Section 49 must be construed restrictively and only to relate to the categories to which I have referred above, and not to any documents which happen to have been supplied to the Commission, originals or copies of which remained with the supplier.  If those documents are otherwise protected from disclosure, they remain so, but the fact of their supply to the Audit Commission does not render them not disclosable in the hands of the original supplier, if they are otherwise required to be disclosed in civil proceedings.

21	Only one document or category of document, I am informed by Mr Stoker on behalf of the Respondent, falls within what I am now satisfied to be the precluded area, by virtue of its description in the list of documents in categories of documents set before me.  That is, document No.90, described as “a letter from District Auditor and Interim Report (letter not found).”  On the face of its description that appears to me to fall within the precluded area covered by Section 49, as being a document created by the Auditor or the Commission.  

22	In relation to all the other documents within the 29 categories, or documents, in respect of which the Tribunal Chairman declined to make an order, I am satisfied that such production by the Respondent would not offend against Section 49 of the Audit Commission Act 1998 and I allow the appeal to the extent of making an order for such disclosure.

23	I am satisfied that this resolves any understandable concerns that the Applicant has had, in relation to the fairness of a hearing and, in any event, it satisfies all the relief that he has sought in his Notice of Appeal and, therefore, insofar as his written submissions range wider than the Notice of Appeal, I make no order, but to that extent and with the exception of document 90, to which I have referred, this appeal is allowed and the order for disclosure is made.

24	Postscript:  I should add that some time later in the day after my delivery of this judgment, the Appellant, who had misunderstood or perhaps been misled about the time of the hearing, attended and was informed by me of his success in his absence.